Citation Nr: 0926564 Decision Date: 07/16/09 Archive Date: 07/22/09 DOCKET NO. 08-10 495 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Entitlement to service connection for skin rash, claimed as secondary to service-connected Barrett's esophagus with history of duodenal ulcer and hiatal hernia, post-Nissen procedure. 2. Entitlement to service connection for headaches, claimed as secondary to service-connected Barrett's esophagus with history of duodenal ulcer and hiatal hernia, post-Nissen procedure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. L. Anderson, Associate Counsel INTRODUCTION The Veteran had active service from January 1956 to January 1959. This matter comes before the Board of Veterans' Appeals (BVA or Board) from an April 2007 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony at a May 2009 videoconference hearing before the undersigned at the RO. A hearing transcript is associated with the claims folder. FINDINGS OF FACT 1. The competent evidence weighs against a finding that the Veteran's rash is proximately due to or the result of the Veteran's service-connected esophageal disability, on either a causation or aggravation basis. 2. The competent evidence weighs against a finding that the Veteran's headaches are proximately due to or the result of the Veteran's service-connected esophageal disability, on either a causation or aggravation basis. CONCLUSIONS OF LAW 1. The Veteran's skin rash is not due to, the result of, or aggravated by the Veteran's service-connected esophageal disability. 38 U.S.C.A. §§ 1131 (West 2002 & Supp. 2008); 38 C.F.R. § 3.310 (2008). 2. The Veteran's headaches are not due to, the result of, or aggravated by the Veteran's service-connected esophageal disability. 38 U.S.C.A. §§ 1131 (West 2002 & Supp. 2008); 38 C.F.R. § 3.310 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2008). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide, in accordance with 38 C.F.R. § 3.159(b)(1) (2008). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the decision of the Court in Dingess v. Nicholson, 19 Vet. App. 473 (2006) requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date. If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Court of Appeals for the Federal Circuit previously held that any error in VCAA notice should be presumed prejudicial, and that VA must bear the burden of proving that such an error did not cause harm. Sanders v. Nicholson, 487 F.3d 881 (2007). However, the U.S. Supreme Court has recently reversed that decision, finding it unlawful in light of 38 U.S.C.A. § 7261(b)(2), which provides that, in conducting review of decision of the Board, a court shall take due account of rule of prejudicial error. The Supreme Court in essence held that - except for cases in which VA has failed to meet the first requirement of 38 C.F.R. § 3.159(b) by not informing the claimant of the information and evidence necessary to substantiate the claim - the burden of proving harmful error must rest with the party raising the issue, the Federal Circuit's presumption of prejudicial error imposed an unreasonable evidentiary burden upon VA and encouraged abuse of the judicial process, and determinations on the issue of harmless error should be made on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In March 2007, VA sent the Veteran a letter informing him of the types of evidence needed to substantiate his claim and its duty to assist him in substantiating his claim under the VCAA. The letter informed the Veteran that VA would assist him in obtaining evidence necessary to support his claim, such as medical records, employment records, or records from other Federal agencies. He was advised that it is his responsibility to provide or identify, and furnish authorization where necessary for the RO to obtain, any supportive evidence pertinent to his claim. See 38 C.F.R. § 3.159(b)(1). Although no longer required, the appellant was also asked to submit evidence and/or information in his possession to the RO. In addition, the letter described how VA calculates disability ratings and effective dates. The Board finds that the contents of the March 2007 letter satisfied the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify and assist, including the requirements set forth by the Court in Dingess, supra. In addition, the April 2007 rating decision and March 2008 SOC explained the basis for the RO's action, and the SOC provided him with an additional 60-day period to submit more evidence. Thus, it appears that all obtainable evidence identified by the Veteran relative to his claim has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. It is the Board's conclusion that the Veteran has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA notices. Moreover, the claimant has not demonstrated any prejudicial or harmful error in VCAA notice, and the presumption of prejudicial error as to the first element of VCAA notice does not arise in this case. See Shinseki v. Sanders, supra. With regard to VA's duty to assist, the RO obtained the Veteran's service treatment records (STRs) and treatment records from the Boise VA Medical Center (VAMC), and the Veteran was afforded a VA examination in April 2007. Accordingly, we find that VA has satisfied its duty to assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claim under the VCAA. Therefore, no useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefits flowing to the Veteran. The Court of Appeals for Veteran Claims has held that such remands are to be avoided. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Secondary Service Connection A. Applicable Law Service connection may be granted for disability which is the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131 (West 2002 & Supp. 2008); 38 C.F.R. § 3.303(a) (2008). Where there is a chronic disease shown as such in service or within the presumptive period under 38 C.F.R. § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation in service will permit service connection. To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease identity is established, there is no requirement of evidentiary showing of continuity. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may be granted for disease that is diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). The Court of Appeals for Veterans Claims has held that, in order to prevail on the issue of service connection, there must be: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in- service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in- service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). Secondary service connection may also be established, under 38 C.F.R. § 3.310(a), for non-service-connected disability which is aggravated by service connected disability. "Aggravation" is defined for this purpose as a chronic, permanent worsening of the underlying condition, beyond its natural progression, versus a temporary flare-up of symptoms. In such instance, a veteran may be compensated for the degree of disability over and above the degree of disability which existed prior to the aggravation of the non-service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). Effective from October 10, 2006, 38 C.F.R. § 3.310 was amended. See 71 Fed. Reg. 52,744 (2006). The new regulation appears to place additional evidentiary burdens on claimants seeking service connection based on aggravation, specifically in terms of requiring the establishment of a baseline level of disability for the non-service-connected condition prior to the claimed aggravation. Because the new law appears more restrictive than the old, and because the Veteran's current claim was already pending when the new provisions were promulgated, the Board will consider this appeal under the law in effect prior to the amendment. See, e.g., Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (new regulations cannot be applied to pending claims if they may have impermissibly retroactive effects). Regardless, based upon the facts in this case, neither version is more favorable, and the regulatory change does not affect the outcome herein. It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. B. Facts and Analysis In this case, the Veteran contends that his skin rash and headaches are caused by medication that he took for his service-connected Barrett's esophagus. Since the current issues on appeal involve secondary service connection, the Board will begin with a brief discussion regarding the Veteran's service-connected esophageal disability. Service connection for a duodenal ulcer was granted in a September 1959 rating decision, wherein a 10 percent rating was assigned with an effective date of January 8, 1959. The disability progressed in severity to include a hiatal hernia and esophogitis, and a September 1983 rating decision increased the award to 20 percent effective from July 26, 1983. A February 1995 biopsy resulted in a diagnosis of reflux esophagitis with Barrett's esophagus. In March 1995, VAMC records show the Veteran had laparoscopic Nissen fundoplication to alleviate his chronic gastroesophageal reflux disease. The Veteran's several requests for a rating in excess of 20 percent for his esophageal disability have been denied. The Board will next examine and analyze the evidence pertaining to the skin rash and headaches separately. 1. Skin Rash There is no record of any skin rash problems during active service. Following separation from service, in January 2006, the Veteran reported to the urgent care clinic at the Boise VAMC with complaints of a rash on his groin area. The Veteran stated he believed that Omeprazole, a medication used to treat gastroesophageal reflux disease, was the cause of his rash. A list of his current medications did not include Omeprazole or any of its marketed forms. However, the physician assistant prescribed Ranitidine to treat the reflux. In May 2006, VAMC records show the Veteran had a groin rash for the past 10 years that purportedly began when he was taking Nexium (a type of omeprazole) for his stomach. Since then, he had tried anti-fungal creams and Vagisil, and currently he reported redness, swelling, itching and burning in his groin and scrotum area. On examination, there was inflammation, moderate swelling and tenderness, as well as a scattered, moist, and raised rash. The nurse practitioner assessed a probable fungal rash that was worsened by using Vagisil, and wrote a prescription for an anti-fungal cream. Later that month, the Veteran again sought treatment at the VAMC urgent care clinic, this time with complaints of itching and a rash all over his body. The treater noted that the Veteran had a long-standing rash in the groin which was previously responsive to fungal cream. This time, the Veteran stated he thought he was allergic to milk because he had eaten ice cream the night before the rash appeared. Moreover, 35 years prior, his face had swelled up after drinking milk and he was told he needed a Benadryl booster to keep the allergic reaction under control. On physical examination, there was no discernible rash on the skin. The treater recommended avoiding dairy products and keeping a food journal to see if there were other triggers for the rash. In August 2006, the Veteran was seen by a doctor for follow- up at the VAMC. He stated that he continued to have an itching groin rash that did not respond to the various creams and medications he had been previously prescribed. Moreover, he reported itching under his arms and on his ankles when he was particularly affected. He continued to relate the rash to his Omeprazole therapy. The doctor concluded that the groin rash was consistent with a fungal infection and prescribed a 4 week anti-fungal trial, to be followed by a different anti-fungal medication in the case of resistance, and eventually a biopsy and dermatology consult. It was noted that the Veteran was refusing to take any medication at the time for his gastroesophageal disease for fear of side effects. In January 2007, the Veteran reported a persistent rash in the groin, axilla and upper trunk. A biopsy taken from the right arm showed a drug eruption. The doctor could not determine what medication caused the rash as the Veteran had not been taking any medication for 2 years. With regard to the groin rash, the doctor noted it was improved and recommended that the Veteran continue applying the anti- fungal cream. The Veteran was afforded a VA examination in April 2007. He reported that he started taking Prilosec, a form of Omeprazole, in 1986. He also took Omeprazole in 2000, but stopped the medication in 2004 due to headaches and a rash in his groin, head, arms and chest. The rash started in his groin area after he began taking Prilosec, and moved to the other areas of his body. He stated that he continued to refuse any medication for his esophageal disorder. On physical examination, the Veteran had a bilateral upper leg and groin candidal-appearing rash that was mildly pink with no drainage. There were no lesions, papules or any eruptions noted. Further, his arms had some pink papules that had no distinct pattern. The examiner assessed candidal dermatitis of the groin area, and non-specific dermatitis of his arms. Moreover, the examiner concluded that a review of literature regarding Omeprazole and its side effects indicated that it was less likely than not that the Omeprazole caused the rashes the Veteran was relating to his use of the medication. Indeed, the examiner stated omeprazole was one of the uses and treatments for rashes. Finally, at the May 2009 hearing before the Board, the Veteran testified that he was taking Prilosec for 8 years until he had the Nissen procedure in 1995. During those 6 years, he developed rashes in the groin area, on his legs, under his arms, and on the side of his head. The rash had not been as severe since he stopped taking Prilosec in 1995. He testified that no doctor had ever told him that the Prilosec could cause have caused the rash. Indeed, the Veteran said that no doctor had ever been able to give him an explanation as to the cause of his rash. Currently, the Veteran still had a rash in his groin area, across his stomach, on his arms, the side of his head, and in his ears. He was not taking any medication for the rash, as every medication he had tried had not worked and doctors had given up. However, he was currently taking Ranitidine, which he said was a different type of medication than Omeprazole, for his esophageal disorder. Based on the foregoing, the Board finds that the weight of the competent evidence shows there is no connection between the Veteran's current skin rash and the medication for his service-connected esophageal disability. There are no competent opinions relating the skin rash to the Veteran's medication. Although a January 2007 biopsy of the right arm showed a drug reaction, the arm rash appeared to be and was addressed separately from the groin rash that the Veteran had complained of for many years. Moreover, the doctor was unable to explain the arm rash as the Veteran had not taken any medication for two years. Further, the April 2007 VA examiner opined that the Veteran's skin rash was not related to the use of Omeprazole medications, and that, indeed, Omeprazole is used to treat rashes. The Board acknowledges that the Veteran is competent to give evidence about what he experienced; for example, he is competent to discuss his rash, itching and other experienced symptoms. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). Moreover, the Federal Circuit Court has held that in certain situations, lay evidence can even be sufficient with respect to establishing medical matters such as a diagnosis. Specifically, in Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit commented that competence to establish a diagnosis of a condition can exist when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Similarly, the Court of Appeals for Veterans Claims has held that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Furthermore, lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). See also Robinson v. Shinseki, No. 2008-7096 (Fed. Cir. March 3, 2009) (confirming that, "in some cases, lay evidence will be competent and credible evidence of etiology"). However, the resolution of issues which involve medical knowledge, such as the diagnosis of a disability and the determination of medical etiology, require professional evidence. See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). In the present case, the cause of the Veteran's rash is not found to be capable of lay observation and thus, his statements regarding etiology of the rash do not constitute competent evidence. Moreover, there are no competent opinions from medical professionals in the evidence of record supporting the Veteran's contention that the rash is related to the medication he takes for his esophageal disability. Accordingly, a relationship between the Veteran's rash and service-connected disability is not established by either the competent evidence or the Veteran's own statements. In conclusion, the preponderance of the evidence is against finding that the current rash is related to the Veteran's service-connected esophageal disability. Therefore the benefit-of-the-doubt rule is not applicable, and the claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. 2. Headaches Review of the Veteran's STRs indicates that he was struck in the head with a baseball in the left anterior temporal area in August 1956. In October of that year, X-rays of the head were negative for fracture or pathology, although the Veteran had daily headaches. In November, he reported severe headaches for the past 3 or 4 months, mainly in the bilateral forehead area. In December 1958, the Veteran passed out and hit his head again. He complained of a generalized headache afterwards. There was swelling of the scalp over the right parietal area with a laceration. Pupils were dilated and reactive. Cranial nerves were intact. X-rays of the skull were negative. The Veteran indicated frequent and severe headaches on his December 1958 separation examination report, but there was no other mention of headaches in the service records. Following separation from service, in August 1983, VA referred the Veteran to see Dr. D.L.M. The Veteran reported heartburn for the past 10 years that was occasionally associated with severe headaches. He stated that the pain was different than that he experienced in service. Nothing alleviated the headaches except going to sleep for several hours. The pain was worst over his right eye, but seemed to involve his entire head. Sometimes he also had nausea, but vomiting was extremely rare. The doctor assessed tension headaches that were not service-connected. In January 1991, the Veteran sought treatment at the VAMC for ulcer symptoms and a severe headache. He stated that his dyspepsia caused headaches, and that the symptoms had been worse the last 3 or 4 years. The doctor recommended Tylenol for the headache. At the time, the Veteran was taking Tagamet for his heartburn. In March 1992, the Veteran continued to have headaches that he associated with his heartburn and abdominal pain. The doctor prescribed Omeprazole to replace Tagamet for his esophageal issues. Several days later, the Veteran reported having a headache for 1 week. The doctor assessed persistent tension headaches and prescribed Tylenol and Ibuprofen. In May 1992, the Veteran reported that his headaches had become more like migraines, and seemed to occur when he had missed his medications or with stress. Headaches were abated with Ibuprofen. The doctor recommended continuing Ibuprofen for the headaches and switched the Veteran's medication back to Tagamet from Omeprazole. In September 1992, the Veteran reported that his migraine headaches were triggered by certain foods. Changing his diet had resulted in some improvement. However, his reflux disease had not improved at all with Tagamet, or after 3 or 4 months on Omeprazole. The doctor continued the prescription for Omeprazole. In December 1993, the Veteran continued to report severe headaches if he did not eat. The headaches were alleviated with Advil. The Veteran was afforded a VA examination in December 1995. He stated that, after eating a large meal, he experienced abdominal pain that was accompanied by occipital headaches. The examiner "had trouble" relating the Veteran's headaches to his abdominal symptoms. Moreover, the examiner stated the Veteran's angry affect and mood indicated there may be a psychiatric component underlying the physical complaints. In February 2004, a CT of the brain showed no significant pathology, with minimal age-related atrophy. The Veteran was afforded another VA examination in April 2007. He said he took Prilosec from 1986 until he had his Nissen procedure in 1995. Then, he tried omeprazole in 2000, but stopped taking it in 2004 due to headaches. Currently, he still had headaches but not migraines, and stated he woke up with a headache every morning. He stated he no longer had heartburn, but still had Barrett's esophagus for which he did not take any medication. The Veteran said his headaches became less frequent after the 1995 Nissen procedure, although he still had headaches 3 to 4 times per week. The examiner concluded that the headaches were less likely than not a long-term result of the use of Omeprazole. A review of literature indicated that Omeprazole could cause headaches while the medication was used, but there were no residual side-effects or extension of the headaches after cessation of the medication. Based on the foregoing, the Board finds that the weight of the competent evidence shows there is no connection between the Veteran's current headaches and the medication for his service-connected esophageal disability. There are no competent opinions relating the Veteran's headaches to the use of medication or to active service. Indeed, he has been repeatedly diagnosed with tension headaches, and he reported that the headaches were often associated with missing medications, not eating, or eating certain foods. Additionally, although the Veteran reported not taking any medication for the past several years, he continues to have headaches. Moreover, both the December 1995 and April 2007 VA examiners opined that the headaches were not related to the service-connected esophageal disability. The Board acknowledges, as above, that the Veteran is competent to give evidence about what he experienced; for example, he is competent to discuss his headaches and other experienced symptoms. See, e.g., Layno, 6 Vet. App. 465 (1994). Moreover, as discussed previously, the Federal Circuit Court has held that in certain situations, lay evidence can even be sufficient with respect to establishing medical matters such as a diagnosis. See Jandreau, 492 F.3d 1372 (Fed. Cir. 2007). Similarly, the Court of Appeals for Veterans Claims has held that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr, 21 Vet. App. 303 (2007). Furthermore, lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan, 451 F.3d 1331 (Fed. Cir. 2006). See also Robinson, supra. However, the resolution of issues which involve medical knowledge, such as the diagnosis of a disability and the determination of medical etiology, require professional evidence. See Espiritu, 2 Vet. App. 492, 495 (1992). In the present case, the cause of the Veteran's headaches is not found to be capable of lay observation and thus, his statements regarding etiology of the headaches do not constitute competent evidence. Moreover, there are no competent opinions from medical professionals in the evidence of record supporting the Veteran's contention that the headaches are related to the medication he takes for his esophageal disability or to the disability itself. Accordingly, a relationship between the Veteran's headaches and service-connected disability is not established by either the competent evidence or the Veteran's own statements. In conclusion, the preponderance of the evidence is against finding that the current headaches are related to the Veteran's service-connected esophageal disability. Therefore the benefit-of-the-doubt rule is not applicable, and the claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. ORDER Service connection for skin rash, claimed as secondary to service-connected Barrett's esophagus with history of duodenal ulcer and hiatal hernia, post-Nissen procedure, is denied. Service connection for headaches, claimed as secondary to service-connected Barrett's esophagus with history of duodenal ulcer and hiatal hernia, post-Nissen procedure, is denied. ___________________________ ANDREW J. MULLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs